The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
27th February to 11th March, 1946

Seventy-Seventh Day:
Friday, 8th March, 1946(Part 1 of 9)

[Page 225]

THE PRESIDENT: I have three announcements to make.

First, to avoid unnecessary translation, defence counsel
shall indicate to the prosecution the exact passages in all
documents which they propose to use, in order that the
prosecution may have an opportunity to object to irrelevant
passages. In the event of disagreement between the
prosecution and the defence as to the relevancy of any
particular passage, the Tribunal will decide what passages
are sufficiently relevant to be translated. Only the cited
passages need be translated, unless the prosecution require
translation of the entire document.

Second, the Tribunal has received an application from Dr.
Nelte, counsel for the defendant Keitel, inquiring whether a
defendant, in order to support his memory, may make use of
written notes while giving oral evidence. The Tribunal
sanctions the use of written notes by a defendant in those
circumstances, unless in special cases the Tribunal orders
otherwise.

Third, cases have arisen where one defendant has been given
leave to administer interrogatories to, or obtain an
affidavit from, a witness who will be called to give oral
evidence on behalf of another defendant. If the witness
gives his oral evidence before the case is heard in which
the interrogatory or affidavit is to be offered, counsel in
the latter case must elicit the evidence by oral
examination, instead of using the interrogatory or
affidavit.

That is all.

I now call upon counsel for the defendant Goering.

DR. NELTE (counsel for the defendant Keitel): Mr. President,
in yesterday's afternoon session, you observed that
application for evidence No. 2, which I had submitted as a
supplement, had not yet been discussed orally. I was
unfortunately not present at the afternoon session
yesterday. It is a question of a subsequent, formal
supplement to my application for evidence. Regarding the
witnesses Westhoff and Wielen, both of these witnesses had
already been granted me in the open Tribunal session. I
submitted these names again only in order to complete my
application for evidence.

As an addition I mentioned only State Secretary Stuckhart, a
witness who has already been granted me previously by a
decision of the Tribunal. I believe, therefore, that I do
not need to discuss this supplementary application, and that
the prosecution has no objection to this action.

THE PRESIDENT: Yes, Dr. Nelte, General Westhoff and Wielen
have already been granted to you, and there is no need for
any further application.

DR. NELTE: Is State Secretary Stuckhart also granted me,
your Honour?

THE PRESIDENT: Westhoff and Wielen have already been granted
to you, and there is no need for any further application.

I am afraid it is difficult to remember these names. I think
that Stuckhart has been granted to you.

DR. NELTE: Yes.

THE PRESIDENT: Yes, I am told he has.

[Page 226]

DR. THOMA (counsel for the defendant Rosenberg): Mr.
President, at yesterday's afternoon session my name was also
mentioned, in the following connection. I had up till then
submitted only written applications and I was to present
them orally. I assume that this refers to the written
application which I handed in with my document and witness
list, in which, in a rather lengthy written application, I
requested that I might have permission to submit in evidence
as documents, quotations from theological and philosophical
works which were considered important when Rosenberg held
office. I beg your Honour to inform me, whether this is the
application in question.

I should like to repeat: The President told me yesterday
that I should repeat my written application orally.
Therefore I should like to ask whether this refers to the
written request that I handed in with my list of witnesses
and documents.

THE PRESIDENT: Dr. Thoma, so far as the Tribunal knows,
everything will be covered by the written order which the
Tribunal will make upon your application. It is not
convenient, really, to deal with these matters now by way of
oral requests, but everything that is in your written
application will be covered by a written order of the
Tribunal. It will be subject, of course, to the order which
I have announced this morning, in order to secure that there
will be no more translation than is absolutely necessary.

DR. STAHMER (counsel for the defendant Goering): Mr.
President and Gentlemen of the Tribunal, before I start with
my presentation, I beg to request two supplementary
applications for evidence. I am cognizant of the fact that
supplementary requests as such should be put in writing. But
since it is a question of several requests, I should like to
have your decision whether I should submit these
applications now or whether the Tribunal desires a written
request.

THE PRESIDENT: You may put your request now verbally, but we
would prefer to have it in writing afterwards as soon as
possible.

DR. STAHMER: I name first Major Buetz, who is interned here
in Nuremberg, as a witness for the following facts:
Reichsmarshal Goering repeatedly opposed, in the summer of
1944, the measures which Hitler had ordered against aviators
taking part in terror attacks. Furthermore, he knows that no
order was issued either by the Luftwaffe or by the Wehrmacht
corresponding to Hitler's orders regarding terrorist
aviators. Finally he can give evidence in regard to the
following: An officer of the Luftwaffe in May 1944 in Munich
protected an airman, who had bailed out, from the lynching
which the crowd wanted to carry out. Hitler, who had
knowledge of this incident, demanded of Goering the name of
this officer, and that he be punished. In spite of repeated
inquiries on Hitler's part, Goering did not give the name of
this officer, although he knew it, and in this way protected
him.

This is the Application regarding the witness Buetz.

Another supplementary request is concerned with the
following: In the session of February 1946, the Soviet
prosecution submitted that a German military formation,
"Stab 537" Pioneer Battalion, carried out mass shootings of
Polish prisoners of war in the forests near Katyn. As the
responsible leaders of this formation, Colonel Arenz, 1st
Lieutenant Rex, and 2nd Lieutenant Hott [NB. These are the
equivalent American military ranks.] were mentioned. As
proof the prosecution referred to Exhibit USSR 64. It is an
official report of the Extraordinary State Commission which
was ordered to investigate the facts of the well-known Katyn
case. The document I have not yet received. As a result of
the publication of this speech by the prosecution, in the
Press, members of the Staff of the Army Group Centre to
which Staff 537 was directly subordinate, and which was
stationed four to five kilometres from Staff 5 3 7, came
forward. These people stated that the evidence upon which
the prosecution has based the statement submitted was not
correct.

[Page 227]

The following witnesses are mentioned in this connection.

Colonel Arenz, at that time Commander of 537, later Chief of
Army Armament and Leader of the Auxiliary Army; 1st
Lieutenant Rex, probably taken as a prisoner of war at
Stalingrad; Lieutenant Hott, probably taken prisoner by the
Russians in or near Koenigsberg; Major General of
Intelligence Troops Eugen Oberhauser, probably taken
prisoner of war by the Americans; 1st Lieutenant Graf Berg,
later Ordnance Officer with Field-Marshal Kluge, a prisoner
of war in British hands in Canada. Other members of the
units which are accused are still to be mentioned.

I name these witnesses to prove that the conclusion as to
the complicity of Goering drawn by the prosecution in the
above-mentioned statement is not justified according to the
Indictment.

This morning I received another communication bearing on the
same question, which calls for the following request for
evidence. Professor Nahwiel, professor of forensic medicine
at the University of Geneva, carried out investigations of
the bodies at that time when with an international
commission at Smolensk. He established from the state of
preservation of these corpses, from the notes and other
means of evidence found in the pockets, that these measures
had already been performed in the year 1940.

Those are my requests for evidence.

THE PRESIDENT: If you will put in those requests in writing,
the Tribunal will consider them.

DR. STAHMER: And now I come to the . . .

THE PRESIDENT: Just one minute. Dr. Stahmer, if you would
communicate your written application to the prosecution,
they would then be able to make a written statement if they
have any objection to it. You will do that as soon as
possible. Let us have both your written application and the
prosecution's answer to it.

DR. STAHMER: The tribunal has ordered in its decision of
11th December, 1945, that the defence is entitled to only
one speech. This shall take place only after the conclusion
of the hearing of the evidence. The Tribunal decided some
time later that explanatory statements may be permitted at
the present stage of the proceedings in connection with the
presentation of documents by the defence. The witnesses have
already been named by me. A decision has been made
concerning their admission, except for today's request and
with the Court's permission, I shall call a witness shortly.
Before I do that, I wish to make the following comments on
the documents to which I shall refer during my final speech:

The prosecution has charged the defendant repeatedly with
the violation of the Treaty of Versailles. In the opinion of
the defence, this charge is not justified. Detailed
statements on this question belong to the concluding speech
of the defence and will therefore be dealt with there.

The present part of the proceedings deals only with the
production of documents which will be used to support the
contention that the Treaty was not violated by Germany but
that the German Reich was no longer bound by it.

I submit that the fourteen points of the American President
Wilson, which were the basis of that Treaty, are commonly
known, and therefore do not need further proof, according to
Paragraph 21 of the Charter.

The Treaty of Versailles has already been submitted to the
Tribunal. It was published in the Reichsgesetzblatt 1919,
Page 687. Out of this Treaty of Versailles, Article 8 and
Part 5 of this Treaty are important for its interpretation.
These provisions insofar as they are of interest here, read
as follows. I quote the first four paragraphs of Article 8:-

"The members of the League recognize that the maintenance
of peace requires the reduction of national armaments to
the lowest point consistent with national safety and the
enforcement by common action of international
obligations.

[Page 228]

The Council, taking account of the geographical
situation, and circumstances of each State, shall
formulate plans for such reduction for the consideration
and action of the several Governments.

Such plans shall be subject to reconsideration and
revision at least every ten years.

After these plans shall have been adopted by the several
Governments, the limits of armaments therein fixed shall
not be exceeded without the concurrence of the Council."

These were the first four paragraphs of Article 8.

"In order to render possible the initiation of a general
limitation of the armaments of all nations, Germany
undertakes strictly to observe the military, naval and
air clauses which follow."

These regulations infer that not only Germany had to disarm,
but also the signatories of the pact were bound to disarm
likewise. Germany, however, was committed to start
disarmament first. Germany completely fulfilled this
commitment.

On the 17th of February, 1927, Marshal Foch stated: "I can
assure you that Germany has actually disarmed."

Therefore, the signatories of the pact had to fulfil their
commitment to disarm. As they did not disarm, Germany was no
longer bound by the pact according to general principles of
law, and she was justified in renouncing her obligations.

This interpretation agrees with the point of view which has
been expressed by French as well as by English statesmen.
Therefore, I should like to refer to the speech made by Paul
Boncour on 8th April, 1927, in which Boncour stated as
follows: I quote from Document Book 1, Page 28.

"It is correct that the introduction to Part V of the
Treaty of Versailles concerns the limitation of
armaments, which was imposed on Germany as a prerequisite
and as the forerunner of a general limitation of
armaments. This brings out very clearly the difference
between the armament restrictions of Germany and other
similar armament restrictions, which in the course of
history have been imposed after the conclusion of wars.
This time these regulations - and in this lies their
entire value - have been imposed not only on one of the
signatories to the Treaty, but they are rather a duty, a
moral and legal responsibility for the other signatories
to proceed with a general limitation of armaments."

Further, I should like to refer to the speech by David Lloyd
George on 7th November, 1927, in which he particularly
describes the memorandum to the skeleton note of 16th June,
1919, as - and I quote from the Document Book 1, Page 26:-

"A document which we handed Germany as a solemn pledge on
the part of Britain, France, Italy, Belgium and twenty
other nations to follow Germany's example after she was
disarmed."

The Treaty of Versailles was not only felt by the German
people to be a bitter injustice. There were numerous voices
even in foreign countries that called the Treaty exceedingly
unfair for Germany. I am quoting the following from
Rothermere's "Warnings and Prophecies," Document Book 1,
Page 30:-

"Germany was justified in feeling that she had been
betrayed in Versailles. Under the pretext ..."

MR. JUSTICE JACKSON (interposing): I call the Tribunal's
attention to the fact that the documents which are now being
read into the record are documents which, as I understand
it, were excluded as irrelevant by the Tribunal when that
matter was previously before it. They are matters of a good
deal of public notoriety and would not be secret if they
were not in evidence; but I think the reading of them into
the record is in violation of the Tribunal's own
determination.

THE PRESIDENT: Dr. Stahmer, the Tribunal had suspected that
these documents had been excluded, and they have sent for
the original record of their orders.

[Page 229]

But I must say now that the Tribunal expects the defendants'
counsel to conform to their orders and not to read documents
which they have been ordered not to read.

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